The ICTY’s Ongoing Attack on the Right of Self-Representation

by Kevin Jon Heller

As everyone in the world probably knows by now, Dr. Karadzic’s trial is set to begin on October 26th. The current trial date is the culmination of two interrelated decisions by the Tribunal: the Trial Chamber’s unsurprising decision not to require the Prosecution to trim its monstrous and completely unworkable indictment (choosing instead to impose insignificant time-limits on the prosecution’s case-in-chief); and the Appeals Chamber’s rejection of Dr. Karadzic’s request for more time to prepare for trial.

Dr. Karadzic’s defense team (of which, as a reminder, I am part) believes that the trial date is completely unfair. But we are certainly not surprised that the Appeals Chamber rejected Dr. Kardzic’s request for more time: the unfair trial date is simply the latest salvo in the Tribunal’s never-ending attack on Dr. Karadzic’s right of self-representation. From the beginning of the case, the Tribunal has tried to force Dr. Karadzic to waive that right by depriving him of the time and resources he needs to adequately prepare for trial.

Consider, for example, one of the Prosecution’s arguments against Dr. Karadzic’s request, as summarized by the Appeals Chamber in its decision setting the trial date:

13. Тhе Prosecution maintains that Karadzic’s own choices have made his preparation for trial more difficult. It contends that Karadzic’ s decision tо represent himself, seek large volumes of disclosure material of only limited relevance, have his legal volunteers work оп issues other than trial preparation and request large volumes of materials аt а late stage from third parties are self-inflicted hindrances tо adequate trial preparation.

Every assertion in that paragraph is misguided. It’s bad enough that the Prosecution openly admits that it believes Dr. Karadzic is not entitled to adequate time to prepare for trial because he has chosen to represent himself. But it’s simply appalling that it would take the position that Dr. Karadzic is not entitled to adequate time because he availed himself of his right under Rule 72 of the ICTY Statute to “(i) challenge jurisdiction” and “(ii) allege defects in the form of the indictment.” According to the Prosecution, a defendant — especially a self-representing one — should have to choose between filing legal motions and preparing for trial. Such a position makes a mockery of the right to a fair trial.

The Prosecution’s arguments concerning disclosure of material of “limited relevance” and materials from third parties are equally offensive. Those materials concern the existence of the Karadzic-Holbrooke agreement, which the Appeals Chamber has held that Dr. Karadzic has the “right to present at trial… as such allegations could be considered for the purpose of sentencing, if appropriate.” The Prosecution is arguing, in other words, that Dr. Karadzic is not entitled to adequate time to prepare for trial because he spent valuable pre-trial time preparing for trial.

That’s the Prosecution. Now consider one of the Appeals Chamber’s arguments in rejecting Dr. Karadzic’s request for more time:

24. … While Karadzic’s defence team maу have taken some time to recruit and mау not bе аblе to work оп еvеrу trial issue he would wish them to, these advisors are а source of significant support, and their limitations are linked to Karadzic’s choice to bе self-represented. The Appeals Chamber has explained that while “а Trial Chamber must bе particularly attentive to its duty of ensuring that the trial bе fair” to self-represented defendants, “[а] defendant who decides to represent himself relinquishes many of the benefits associated with representation bу counsel.”

Get that? One of the costs of self-representing is the right to have adequate time to prepare for trial. A more direct attack on a defendant’s right under Article 21(4)(d) of the ICTY Statute “to defend himself in person” is difficult to imagine.

I recognize that the Completion Strategy puts enormous pressure on the Tribunal to expedite trials. The solution, however, is not to punish defendants for exercising their rights under the ICTY Statute. As Judge Hunt famously — and bravely — pointed out:

This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials. The Majority Appeals Decision and others in which the Completion Strategy has been given priority over the rights of the the accused will leave a spreading stain on this Tribunal’s reputation.

Judge Hunt made that comment in 2003, during the Milosevic trial. Unfortunately, the Tribunal seems to have learned nothing since then.

8 Responses

I admit to not knowing any of the details of this “Completion Strategy” (some links might be helpful) until I looked it up. What is its legal status? Is there any precedent in international criminal law or something comparable in the Rome Statute? for this? Have member states or the Security Council as whole been putting pressure on the ICTY beyond or outside the original resolutions? I suppose I’m asking generally for comparable instances of how such “target dates” have been understood elsewhere (assuming, perhaps mistakenly, they’ve been used elsewhere).

Given the precedent of the Milosevic case, and undoubtedly many others with which I am less familiar, I think we can all agree that plaintiffs’ insistence on their right to proceed pro se smells suspiciously like abuse of right, meaning that the tribunal is within its rights to discourage it.

I doubt the actions of any previous defendants should have legal bearing on determining whether or not Dr. Karadzic is himself acting so as to substantially and persistently obstruct the proper and expeditious conduct of the trial. In any case, what kind of right is the right to self-representation if its mere exercise necessarily brings with it a presumptive suspicion of abuse?

The actions of previous defendants are relevant because the present defendant will have drawn lessons from them, particularly the lesson that it is extremely easy to obstruct the working of the tribunal by insisting on appearing pro se. Especially given the well known fact that the Tribunal does not have unlimited time, the defendant has an incentive to delay, and the best-known way to do that in the ICTY is to represent yourself.

That said, so far mr. Karadzic’s actions do not seem to rise to the level of abuse of right. If they did, the court could assign him an attorney whether he wants one or not, as – I think – they did (or attempted to do) in the Milosevic case. Nevertheless, the fact that he has sophisticated legal advisors, but simply refuses to designate anyone as his attorney adds further credence to the suspicion of abuse.

There is nothing “presumptive” about such a suspicion, it is simply a reasonable inference from the defendant’s behaviour so far.

10.17.2009
at 12:59 pm EST Martin Holterman

Kevin,

Though I agree with you as a general matter that the Completion Strategy has produced many adverse effects on the quality of trials before the ICTY, there is an unresolved issue that is implicit, but not addressed, in your critique of the Tribunal’s decision to set the Oct 26 trial date. It’s one thing to say that a self-represented accused has to have ‘adequate time’ to prepare for trial – all of us would, I imagine, agree on that – but the real issue is under what standard we are to judge what time counts as adequate.

I will briefly tell you what I think, but I would truly appreciate your thoughts. First, to my mind, it is perfectly proper for a court to compare the time needed for a self-represented accused to prepare for trial to some relatively objective standard as to how much time would legally educated and experienced counsel reasonably take to prepare for the same case. ‘Adequate’ time for preparation can’t just be the time needed by ANY self-represented accused, no matter how legally uneducated, inexpert or inexperienced. Self-representation does come at numerous costs, and I don’t see why it shouldn’t. Particularly in light of the trials before the ICTY, I just can’t see self-representation as this most fundamental of all rights, capable of overpowering all other competing interests, such as the public’s interest in an expeditious trial. Indeed, as you well know, were Karadzic to have been tried in his native Bosnia, or in Serbia where he was arrested, or for that matter in a large number of other European states, representation by counsel would have been mandatory, precisely because all of this states consider that self-represented accused cannot successfully handle the numerous issues that can arise in complex cases, including resource allocation.

Second, I also don’t see anything improper in a court assessing the efficiency of the way in which a self-representing accused spends his available time. The Holbrooke immunity deal motion, though theoretically (as presented by Karadzic) capable of excluding him from the Tribunal’s jurisdiction, had almost no prospects of success, in (I would say) the judgment of the overwhelming majority of lawyers acquainted with the case. It was Karadzic’s choice whether to devote such an enormous amount of his time – and the time of his advisers and assistants – on an issue that, while not totally irrelevant, was far from the most important matter that he could have addressed. In other words, Karadzic freely chose how he would spend his time (and he did that for purely political reasons). That this was, on the whole, unproductive regarding the preparation of the case, is a consequence of his, well, strategically bad lawyering, but that is something that he entirely brought on himself.

10.17.2009
at 1:11 pm EST Marko Milanovic

It smells of presumption to me (you wrote: I think we can all agree that plaintiffs’ insistence on their right to proceed pro se smells suspiciously like abuse of right), for it could, theoretically, be invoked in any case from this point forward where an defendant insists on self-representation, hence your characterization of “precedent” in the Milosevic case. I think any reasonable inference in this (as to abuse of right) regard should be confined to the procedures and facts of the instant case, hence your conclusion that “Karadzic’s actions do not seem to rise to the level of abuse of right” would apply.

That said, I think Marko’s query and Kevin’s reply should prove helpful.

@Patrick O’Donnell: The point is the knowledge that the defendant in this case possesses about how to go about delaying proceedings before the ICTY, just like it is about behaviour of this defendant, and the incentives of this defendant to delay.

That said, Marko’s defence of the Tribunal is less drastic and more sophisticated than mine. I, too, look forward to Kevin’s reply.

10.17.2009
at 2:07 pm EST Martin Holterman

The UN Security Council is rushing the ICTY to push through, Doctor Radovan Karadzic’s, trial.

And in doing so, Doctor Radovan Karadzic’s, trial becomes unfair from its very pre-conception.

I’d become extremely deeply distraught, if, Radovan Karadzic does not receive the fair time deserving, for his trial preparations. He ought to make one more appeal if possible to delay the trial. and, if thereafter, the Pre-trial Chamber refuses this last request for time, the entire trial becomes corrupted and unfair dfrom that point, and thereafter. I hope this will not be the case.

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